NEET must for BHMS Admissions: Karnataka HC
Bengaluru: National Eligibility-cum-Entrance Test (NEET) is mandatory for admission to undergraduate Homeopathy courses, the High Court of Karnataka has recently held while upholding Constitutional validity of provision of the National Commission for Homeopathy Act, 2020With this, the HC division bench comprising Justice Alok Aradhe and Justice Vijaykumar A Patil disposed of the plea filed...
Bengaluru: National Eligibility-cum-Entrance Test (NEET) is mandatory for admission to undergraduate Homeopathy courses, the High Court of Karnataka has recently held while upholding Constitutional validity of provision of the National Commission for Homeopathy Act, 2020
With this, the HC division bench comprising Justice Alok Aradhe and Justice Vijaykumar A Patil disposed of the plea filed by Karnataka State Private Homoeopathic Medical College Managements Association.
Approaching the HC bench, the association had prayed for striking down certain provisions of the 2020 Act and the Regulations framed under it, claiming the concerned rules to be unconstitutional.
Dismissing the prayer, the HC bench observed that Section 14 of the 2020 Act expressly prescribes NEET for admission to UG courses in Homeopathy in all the medical institutes.
The bench noted, "Thus, the legislature in its wisdom, has taken a view that merit based admission can be ensured to a common entrance test namely NEET.”
National Commission for Homeopathy Act, 2020 repealed the Homeopathy Central Council Act, 1973 after receiving the assent of the President on 20.09.2020. Issuing an order dated 05.07.2021, the Central Government set up the National Commission for Homeopathy. Thereafter, on 13.07.2021, the National Testing Agency issued a public notice and invited applications for NEET as per Section 14 of the Act.
NTA notified conducting NEET examination for the academic year 2022-2023 on 17.07.2022. Issuing a communication dated 13.10.2022, the State Government arranged a meeting for discussing the matter and to arrive at a consensual arrangement for providing appropriate fee structure and seat sharing. At that time, the association had submitted representations on 09.11.2022 and 05.12.2022 for reconsidering the fee structure.
Following this, the government held a meeting with the members of the Association and other stakeholders and issuing an order dated 13.10.2022, the Government provided the annual fee structure and also the seat matrix regarding admission to UG and PG Homeopathic courses for the academic year 2022-2023.
Thereafter, on 06.12.2022, the calendar was notified regulating imparting courses of study. It had been fixed that courses shall begin from October 1 of the year. Through a government order dated 13.12.2022, an addendum was issued providing that the seats for Homoeopathy courses shall be filled as per the 2022 regulations as notified by the Karnataka Examination Authority on 06.12.2022.
Several seats were vacant for the academic session 2022-2023 also. Thereupon the petitioners once again filed an interlocutory application in an earlier petition. Passing an interim order on 22.11.2022, a division bench allowed admissions to students academically qualified but without NEET ranking. Challenging the concerned order, the National Commission for Homeopathy before the Supreme Court.
Issuing an order dated 13.02.2023, the Civil Appeal had been decided and the order passed by the High Court was set aside and the matter was remitted to the High Court to decide the same on merits finally before the last date proposed for admission, which was to be extended by National Medical Council.
It was submitted that the fundamental rights acknowledged and recognized which are available to private educational institutes on the basis of the Supreme Court decision regarding the Right to admit and impart secular education is subject to reasonable restrictions and is not permissible for imposing any restriction by subordinate or delegated legislation, as is sought to be done by the guidelines issued by Ayush Department of Central Government.
Further, it was contended that Section 14 of 2020 Act is wholly disproportionate to the object sought to be achieved and suffers from manifest arbitrariness. The petitioners also told the court that the provisions of the Act suffer from doctrine of non retrogression and hit by principles of proportionality.
“The institutions imparting education in homoeopathy courses are not of All India character and there is no excess demand over availability, giving scope for malpractices and therefore, requiring assessment of inter se merit for grant of admission to competing aspirants for admission does not arise,” it was argued.
On the other hand, the counsel for National Homoeopathy Commission submitted that the Act and the Regulations framed therein have been enacted with an object to provide medical education system, including access to quality and affordable medical education and there is no violation of either any fundamental rights of the petitioners or any other provisions of the constitution.
“Under Section 59(2) of 2020 Act notwithstanding repeal of the old Act and the Rules, the Regulations made shall continue to be in force and shall operate till new standards or requirement are specified under the Act,” contended the counsel.
Further, it was submitted that the Central Government under Sections 43 and 44 of the Act will issue guidelines and directions to National Council for Homeopathy for effective implementation of the Act and the admission process for the academic year 2022-2023 shall be governed by the guidelines dated 18.10.2022.
Taking note of the submissions, the Supreme Court bench referred to the Supreme Court order in the case of Veternary Council of India vs. Indian Council for Agricultural Research and said, “Even in the absence of a specific provision, it has been held that power to regulate standard of education casts a corresponding duty to conduct an All India Examination.”
The bench further observed that the right to administer an educational institute including a right to admit students, is not an absolute right and can be regulated. “The prescription of NEET fulfils the twin tests of proportionality and reasonableness,” noted the bench.
“The object of prescription of test is to ensure that qualified students take admission in B.H.M.S Course, which is in the interest of the patients whom they treat. Merely because the number of seats are more and the candidates are less, the requirement of merit based admission cannot be dispensed with and the private educational institution cannot have an unfettered right to admit the students regardless of their merit,” it further added.
It was held by the bench that the doctrine of non retrogression provides that State should not take any measures or steps deliberately leading to retrogression on the enjoinment or rights either under the Constitution or otherwise.
“In the instant case, by enacting Section 14, the right of the petitioners to admit students in educational institutions has merely been regulated and the same does not amount to violation of the rights of the petitioners under the constitution or any other enactment. Therefore, the principle of doctrine of non retrogression is not applicable to the facts of the case,” noted the bench.
At this outset, the bench also clarified that Section 14 of the Act does not suffer from manifest arbitrariness or the test of proportionality and it also does not violate the doctrine of non retrogression.
Further rejecting the challenge to Sections 3, 4 and 10 of the Act the bench held, “The contention that Commission comprises only of officers of the Central Government is incorrect, as the Commission comprises part time members also. The Commission has been constituted under the 2020 Act to perform its functions under the Act.”
It was observed by the bench that the provisions by no stretch of imagination suffer from the doctrine of non retrogression and the bench further added, "The aforesaid provisions have also not been shown to be per se arbitrary. Therefore, the contention that the aforesaid provisions are manifestly arbitrary or are unworkable cannot be accepted.”
Dismissing the challenge to Sections 43 and 44 of the Act, the bench observed, “The Act itself requires holding of NEET for admission to the course. Therefore, in any case, the aforesaid contention made on behalf of the petitioners does not render the provision Sections 43 and 44 of the 2020 Act bad in law.”
Referring to the challenge to the Regulations made on the ground of principles of proportionality, the bench held that it is trite law and there is a presumption in favour of constitutionality or validity of a subordinate legislation and the burden is on the person who challenges the same.
Taking note of the six grounds on which the challenge can be raised the bench said: “The 2022 Regulations have been framed in exercise of powers under Section 55(2) of the 2020 Act. The challenge to the Regulation made on behalf of the petitioners does not fall in any of the aforementioned grounds.”
However, the bench allowed the pleas in part and held that the guidelines framed by the Ministry of Ayush dated 18.10.2022 and the Regulations under the National Commission for Homeopathy dated 06.12.2022 do not apply to the process of admission to BHMS under graduate course which have already commenced on 19.07.2022.
“The Government Order dated 13.12.2022 making the 2022 Regulations applicable in respect of admission to B.H.M.S. undergraduate course for academic session 2022-23 is quashed,” the bench further noted.
Dismissing the plea, the bench allowed the petitioners to admit students on the remaining vacant seats on the basis of academic eligibility for the academic session 2022-2023 only.
To read the HC order, click on the link below:
https://medicaldialogues.in/pdf_upload/karnataka-hc-order-204035.pdf
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